Join The Conversation

July 2017

by Bidish Sarma. Sarma is an attorney who represents individuals sentenced to death and other harsh punishments including life without parole. He previously worked as a clinical teaching fellow at the Berkeley Law Death Penalty Clinic and staff attorney and Deputy Director of the Capital Appeals Project in New Orleans

Given all of his “tough-on-crime” rhetoric and crime-related fear-mongering on the campaign trail, it is no surprise that President Trump—primarily through his attorney general, Jeff Sessions—has doubled down since taking office. What we have seen so far suggests that the Trump-Sessions brand of justice has at least two core components: an aggressive charging strategy (consistently charging the most serious offenses) and the continued exploitation of unfettered prosecutorial power. Blessed with extraordinary power himself, AG Sessions is acting on his bizarre and unfounded belief that prosecutors are somehow disadvantaged in the criminal justice system. For months, commentators have wondered aloud whether the judiciary—most importantly, the Supreme Court—will stand up to the executive branch and act independently to protect constitutional norms. The Court’s weighty travel ban order issued last week provides a metric ton of tea leaves on this question for those inclined to read them. Less obvious, but nonetheless significant, are two recent decisions the Court has made regarding the due process obligation prosecutors possess to disclose exculpatory evidence to criminal defendants. Inspiring concern, these decisions point to the possibility that the Court (or a near-majority of the justices) will sign off on the administration’s expansive view of prosecutorial authority.

Last week, the Supreme Court issued its opinion in Turner v. United States. This was a fact-intensive case that I wrote about for the ACSbloghere back in March. As several court-watchers anticipated, the Court decided the case in a narrow fashion; it took the opportunity to—as I characterized it three months ago—use its familiar and “well-worn minimalist approach in the Brady due process context.” What was surprising, however, was the outcome. Amy Howe, a wise spectator at SCOTUSblog, wrote in an oral argument preview that it appeared the “justices granted review to reverse the men’s conviction.”

by Brandon L. Garrett, Justice Thurgood Marshall Distinguished Professor of Law, University of Virginia School of Law and Lee Kovarsky, Professor of Law University of Maryland Francis King Carey School of Law. Professors Garrett and Kovarsky co-author a habeas corpus casebook, Federal Habeas Corpus: Executive Detention and Post-conviction Litigation, published by Foundation Press.

This week, in Davila v. Davis, the Supreme Court blocked a promising avenue for criminal defendants to enforce their rights to counsel. After Davila, when a state habeas lawyer forfeits an argument that an inmate was deprived of the constitutional right to appellate counsel, the inmate is out of luck. The holding came in a death penalty case, but the rule applies against noncapital defendants too.

The fact pattern was familiar: trial counsel objected to an unlawful jury instruction, but appellate and state habeas lawyers ignored the claim. And the instructional error was really important, because it likely allowed Davila to be convicted of capital murder based on insufficient evidence of intent. Texas permits the death penalty to be imposed for multiple intentional killings, and has a transferred intent rule providing that, in situations where someone trying to murder one person kills another, the killing is still “intentional.” Erick Davila killed two people, but the evidence strongly suggested that he had tried to kill only one person—who was not a victim. Davila means that, had the scenario involved trial counsel’s failure to challenge the instruction rather than appellate counsel’s failure to appeal the issue, the claim could be revived in federal court. But because appellate counsel made the mistake, it cannot.

The Supreme Court term that ended last week was fairly tame – at least by recent standards. But top Court observers on an American Constitution Society panel on Thursday said that beneath the collegiality and calm were signs of major fissures likely to deepen and become more acrimonious when the Court reconvenes in October.

And nothing may have made that more clear than the Court's parting decision, crafting a compromise of sorts that lifted a stay on major parts of President Trump's hugely controversial travel ban.

"It is muscular. It is the court drawing its own line – not based in statute, not based in executive order -- about how this semi-stay is going to be accomplished," said Lee Rowland, senior staff attorney for the ACLU's Speech, Privacy, and Technology Project. "I think that's an indicator that the Court is willing to wade in to some serious controversy, including making foreign policy itself."

Paul Clement, a former solicitor general now at Kirkland & Ellis LLP, said the Court's travel ban decision was "a good way to think about the transition from this last term, which was kind of sleepy, and they decided a lot of things with eight justices, and didn't make any waves" to "a term full of blockbusters."

And there's no question that Trump's addition to the Court, Justice Neil Gorsuch, will be a key element in that transformation.

For now, said Tom Goldstein, the co-founder and publisher of SCOTUSblog, "I think that one of the things that's going on is what we call the left on the Court is trying to be relatively tactical and trying to accommodate what they think is the inevitable pivot of the Court still further to the right… and trying to build some sort of consensus."